Discussion of Family Law Appeals in Harris, Montgomery, Fort Bend, Brazoria Counties & Across Texas

Opinions, March 17, 2016: Primer on Separate Property

The First District Court of Appeals released its memorandum opinion in Lopez v. Lopez, No. 01-15-00618-CV this morning, affirming the 308th’s division of the marital estate. The case presents a nice and uncomplicated illustration of how to establish a separate property claim at trial.

Jose and Anita married in 1985 and moved into a house on Twickenham Trail in Houston. The Twickenham house was owned by Anita’s mother. During the marriage, they made payments on the home from community funds to Anita’s mother to retire the debt, but there was no evidence of a written installment contract or contract for deed between Anita’s mother as seller and Anita and Jose as buyers.

At some point, Anita’s father passed away and she received an inheritance from his estate in 2004 which apparently consisted of an interest in real property that he owned. Two of Anita’s siblings purchased her interest, each writing a check to Anita individually for $31,566.67. Anita deposited her brother’s check into a certificate of deposit and did not claim it as separate property when Anita and Jose divorced in 2014. But Anita took the check from her sister and endorsed it to their mother as partial payment for purchase of Twickenham. The mother then deeded Twickenham to Anita individually in 2004. The evidence included the canceled check from Anita’s sister (without objection from Jose) and corroborating testimony from her (without objection from Jose).

The trial court entered findings adopting the uncontested valuation figures from Anita’s I&A and determined the value of Twickenham was $31,566.67 and was Anita’s separate property.

The Court of Appeals applied the inception of title rule and the statutory presumption that assets gained during the marriage are community assets and concluded that Twickenham was presumptively a community asset.

Next, the Court of Appeals examined whether the evidence supported the trial court’s finding that Twickenham was Anita’s separate property. The court reviewed the evidence and noted that undisputed testimony is sufficient to establish the separate character of property. The Court of Appeals affirmed the trial court in finding the evidence sufficient to support Anita’s separate property claim.

Finally, Jose also challenged an award of attorney’s fees the trial court made of $10,000.00 against him. Jose stipulated at trial that $10,000 was a reasonable and necessary amount for fees but on appeal contended that the evidence was insufficient to support the award. The Court of Appeals found that Jose was awarded the business assets in the divorce and that Anita testified she received none of the income from the businesses after the couple separated, though Jose did send her money after she requested a divorce. Also, Anita presented evidence that Jose had diverted some of the income to his family and his girlfriend in the Honduras (I love it when this sort of detail comes out at the end of the opinion). The Court of Appeals affirmed the award.